Last Friday, the supreme court stayed proceedings in the Aerotek litigation from Dallas, in which a Fifth Court panel split 2-1 about the evidence needed to prove up the plaintiff’s assent to an arbitration agreement. The matter will be orally argued in February.
New Rehearing Rule
A new version of Tex. R. App. P. 49.3, about motions for rehearing, takes effect at the start of 2021. The new rule addresses the problem that surfaced after the 2018 elections, when many Justices who sat on a panel were no longer on their courts when the new calendar year begin. (I am quoted in this Law360 article about the rule amendment.)
Vote for Super Lawyers
Yes, it’s kind of a pain, but it’s your vote, your voice, and your chance to be heard as to a widely-circulated attorney directory. The link to the Super Lawyers nomination site is here, and the deadline to make your nominations is December 21, 2020.
SCOTX advisory on Tom Reavley
Below is the Texas Supreme Court’s advisory from last week about the death of Tom Reavley.
THOMAS M. REAVLEY, 1921-2020
Tom Reavley, who served for nine years on the Texas Supreme Court before President Carter appointed him to what would become a 41-year career on the Fifth Circuit U.S. Court of Appeals, died Tuesday in Houston. He was 99.
When he died he was the oldest active federal judge. During his federal judicial tenure he decided cases as a visiting judge on every U.S. court of appeals but one. His legal career spanned more than six decades.
As a lay Methodist minister and Sunday School teacher, his moral bearing earned him the sobriquet “Pope of the Fifth Circuit.”
Chief Justice Nathan L. Hecht said: “Sailor, scholar, lawyer, advisor to governors and presidents, judge, writer – Tom Reavley was all these things, and always with unfailing wisdom, humility, civility, decency, kindness to all and good humor. He was a towering figure in Texas and a true champion of justice for the state and the country.”
One among legions of his former law clerks, legal lexicologist and law professor Bryan A. Garner said Reavley should be remembered “in the tradition of the greatest American judges”: “Fair-minded, understanding, empathetic, forgiving of people’s foibles, common sensical, impatient with mean-spiritedness and altogether wise and humane.”
His onetime colleague Robert Parker, a former Fifth Circuit judge from Tyler, said Reavley will be remembered for a total dedication to the rule of law. “On the trial court, the state Supreme Court and the federal court of appeals his decisions were never calculated on the basis of following some political agenda,” Parker said. “He tried to understand the law that applied to circumstances of the dispute before him, then steadfastly followed the law. That’s the mark of a great judge.”
Services are pending in Houston. Judge Reavley was married for 60 years to Florence Wilson Reavley, who died in 2003. In 2004 he married Judge Carolyn Dineen King, also of the Fifth Circuit, also a Carter appointment in 1979. They appeared on the same day before the Senate Judiciary Committee and were the only married couple among Article III appellate judges.
Judge Reavley and Judge King recalled that his late wife, before she died, told them to marry.
Survivors include Judge King and four children, Thomas Wilson Reavley, Marian Neevel, Paul Stuart Reavley and Margaret Currin; four grandchildren; and four great-grandchildren.
Thomas Morrow Reavley was born June 21, 1921, in Quitman and was reared in Nacogdoches, where his parents had a general store and a café. He earned his bachelor’s degree from the University of Texas at Austin in 1942, then enlisted in the U.S. Navy and was a lieutenant who drove President Franklin Roosevelt to Roosevelt’s meeting with Winston Churchill and Josef Stalin at Yalta. After his discharge in 1946 he earned his law degree from Harvard in 1948, then served as an assistant district attorney in Dallas for two years. He then returned to Nacogdoches, where he was in private practice before his election as Nacogdoches County attorney.
In 1955 Gov. Allan Shivers chose Reavley to be secretary of state. When his two-year appointment expired, he returned to private practice in Jasper and Austin. In 1962 he ran unsuccessfully for Texas attorney general. In 1964 Gov. John Connally appointed him to the 167th District Court in Travis County.
In 1960, as a volunteer for then-Sen. John F. Kennedy’s presidential campaign, he suggested to campaign officials that Kennedy confront the “Catholicism issue” by speaking to Protestant ministers at the Houston Ministerial Association.
In October 1968 Connally appointed him to the Texas Supreme Court just before his election that November. He returned to private practice in Austin in 1977 and in 1978 was appointed a special judge on Texas Court of Criminal Appeals, making him one of few judges who served on both of Texas’s high courts.
In 1979 President Carter nominated him to the Fifth Circuit. He took senior status in 1990 but maintained a mostly full caseload for years before 2019. In 1983 he earned a master’s degree in judicial studies the University of Virginia law school. Four universities in Texas and California awarded him honorary doctoral degrees.
Off the bench, Judge Reavley was a prolific writer and served on the adjunct faculty of the University of Texas School of Law and lectured at Baylor, Pepperdine and Texas Tech law schools. With 11 other judges and Garner, he was coauthor of a highly regarded The Law of Judicial Precedent, published in 2016. In 2016 Baylor Law Review dedicated a volume to Judge Reavley in recognition of his contributions to Texas and to American law.
“He showed what a difference an intelligent man can make in society,” said the late Austin lawyer William Hilgers, a longtime friend. “His work as a judge went to the highest expectations I could imagine for a judge’s conduct.”
Justice Jeff Boyd recalled Judge Reavley’s lasting impression on him after his clerkship in the Baylor Law Review tribute. “Of course, he taught us the importance of knowing the law and of protecting the rule of law. He taught us the importance of disciplined habits, like reading the entire trial-court record before beginning even an outline of an appellate opinion.
“But beyond all that, he taught us the importance of truly respecting your colleagues even when you disagree with them, of avoiding the pettiness that sometimes finds footing within the bench and the bar, and of knowing the names of – and genuinely caring about – every deputy clerk, doorman and waitress at the places you frequent. He was the first judge I ever really knew, and the only one I’ve ever wanted to be exactly like.”
No compliance, no service
“[T]he trial court’s order authorized substitute service at a house number on ‘Heathers Hill Drive’ in Dripping Springs, and the return stated that service was executed at the same house number but on ‘Heather Hills Drive’ in Dripping Springs. Substitute service therefore did not strictly comply with the trial court’s order. Nothing in the record demonstrates that the Spantons actually received substitute service or that Heather Hills Drive and Heathers Hill Drive are the same street. While one might reasonably presume or believe that to be true, we cannot entertain such presumptions or beliefs to uphold a default judgment based on substitute service. The face of the record in this case establishes that the substitute service did not strictly comply with the order permitting such service. As a result, the default judgment cannot stand.” Spanton v. Bellah, No. 19-0920 (Nov. 20, 2020) (emphasis modified, citation omitted).
Election Results
The Texas Lawbook summarizes the 2020 Texas Supreme Court election results, in which all four incumbents have won their re-election bids:
Clash of the warranties
Northland Industries v. Koba presented a clash between the UCC’s implied warranty of merchantability and the express terms of an asset purchase agreement. Held: “Subject to exceptions not applicable here, an asset purchaser inherits none of the asset seller’s liability absent an agreement to do so. Based on the asset-purchase agreement’s plain and unambiguous language, the Buyer’s express assumption of the written warranty for repair or replacement of defective treadmill parts was not an assumption of a warranty of merchantability implied by law.” No. 19-0835 (Oct. 23, 2020).
Welcome Justice Huddle
The Texas Supreme Court has announced:
“Gov. Greg Abbott announced his appointment of Rebeca Aizpuru Huddle of Houston to replaced retired Justice Paul Green. Huddle, an El Paso native, is currently managing partner of the Baker Botts Houston office and a former appellate justice in Houston.
‘Rebeca Huddle brings remarkable experience to the Court,’ Chief Justice Nathan L. Hecht said, ‘a litigator who has spent her career in the courtroom, seven years as an appellate justice and, most recently, managing the flagship office of one of Texas’s oldest and largest law firms. She will serve the people of Texas with distinction and the Court is proud to have her join us.’
The press conference was at Austin High School in El Paso, her alma mater. Story from the Texas Tribune.”
Yes, that’s authentic
A document was authentic when:
- Applying Tex. R. Evid. 901(b)(4): “Fleming produced uncertified copies of the Harpst jury verdict and final judgment, which the trial court judge had himself received and signed in the Harpst plaintiffs’ case. The documents bore a diagonal watermark from the district clerk’s office, a stamp and signature noting when they were filed in the clerk’s office, and the trial judge’s own signature. The Wilson plaintiffs never suggested that the documents were faked, forged, or altered, but instead complained only that they were not certified copies.”
- Applying Tex. R. Evid. 901(b)(7): “While a certified copy of a public record would automatically be self-authenticating, Tex. R. Evid. 902[b](4), an uncertified copy of a public record could itself contain sufficient evidence that it was filed or kept in a public office. See Tex. R. Evid. 901(a). Here, the watermark and file stamp from the district clerk’s office on the documents qualify as sufficient evidence, so the trial court did not abuse its discretion by finding them authentic.”
Fleming v. Wilson, No. 19-0230 (Oct. 9, 2020) (per curiam).
Mandamus – Laches, even for election cases
A challenge to the Governor’s extension of the early-voting period, brought as an original proceeding in the supreme court, failed for procedural reasons: “Relators delayed in challenging the Governor’s July 27 proclamation for more than ten weeks after it was issued. They have not sought relief first in the lower courts that would have allowed a careful, thorough consideration of their arguments regarding the Act’s scope and constitutionality. Those arguments affect not only the impending election process but also implicate the Governor’s authority under the Act for the many other actions he has taken over the past six months. Relators’ delay precludes the consideration their claims require.” In re Hotze, No. 20-0739 (Oct. 7, 2020).
